[Introduced February 15, 2012; referred to the Committee on the
Judiciary.]

____________

A BILL to amend and reenact §60A-7-706 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto six new sections, designated §61-8C-6, §61-8C-7, §61-8C-8, §61-8C-9, §61-8C-10 and §61-8C-11, all relating to
forfeiture of certain property; correcting a technical error;
stating legislative findings; providing for the forfeiture of
certain materials related to recording sexually explicit
conduct of minors or soliciting minors; establishing a
procedure for seizure of forfeitable property; creating
procedures for forfeiture; setting process for disposition and
distribution of forfeited moneys, securities and negotiable
instruments; and creating process for disposition and
distribution of other forfeited properties.

Be it enacted by the Legislature of West Virginia:

That §60A-7-706 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by
adding thereto six new sections, designated §61-8C-6, §61-8C-7,
§61-8C-8, §61-8C-9, §61-8C-10 and §61-8C-11, all to read as
follows:

CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

ARTICLE 7. WEST VIRGINIA CONTRABAND FORFEITURE ACT.

§60A-7-706. Disposition of forfeited moneys, securities or other
negotiable instruments; distribution of proceeds.

(a) Whenever moneys, securities or other negotiable
instruments are forfeited under the provisions of this article,
such proceeds shall be distributed as follows:

(1) Ten percent of the proceeds shall be tendered to the
office of the prosecuting attorney which initiated the forfeiture
proceeding;

(2) The balance shall be deposited in a special law-enforcement investigation fund. The fund may be placed in any
interest-bearing depository insured by an agency of the federal
government. The fund shall be administered by the chief of the
law-enforcement agency that seized the forfeited property.

(b) No funds shall be expended from the special law-enforcement investigation fund except as follows:

(1) In the case of the funds belonging to the department of
public safetyState Police, the funds shall only be expended at the
direction of the Superintendent of the departmentState Police and
in accordance with the provisions of section fifteen, article two,
chapter five-a of this code and the provisions of subdivision (10),
subsection (j)(b), section two, article two, chapter twelve of
this code;

(2) In the case of funds belonging to the office of either the
sheriff or prosecuting attorney of any county in which the special
fund has been created, the funds therein may only be expended in
the manner provided in sections four and five, article five,
chapter seven of this code; and

(3) In the case of funds belonging to the police department of
any municipality in which the special fund has been created, the
funds therein may only be expended in the manner provided in
section twenty-two, article thirteen, chapter eight of this code.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.

§61-8C-6. Legislative findings.

The Legislature hereby finds and declares that the seizure and
sale of items under the provisions of this article is not
contemplated to be a forfeiture as the same is used in article
twelve, section five of the West Virginia Constitution and to the
extent that such seizure and sale may be found to be such a
forfeiture, the Legislature hereby finds and declares that the
proceeds from a seizure and sale under this article is not part of
net proceeds as the same is contemplated by such article twelve,
section five of the West Virginia Constitution.

(1) All visual depictions which have been manufactured,
distributed, dispensed or possessed in violation of article eight-a
or eight-c of this chapter or section fourteen-b, article three-c
of this chapter;

(2) All raw materials, products and equipment of any kind
which are used, or intended for use, in manufacturing, processing,
delivering, importing or exporting any visual depictions or any
crimes against children in violation of article eight-a or eight-c
of this chapter or section fourteen-b, article three-c of this
chapter;

(3) All books, records, research products and materials,
including hard drives, microfilm, tapes and data which are used, or
have been used, or are intended for use, in violation of article
eight-a or eight-c of this chapter or section fourteen-b, article
three-c of this chapter;

(4) All moneys, negotiable instruments, securities or other
things of value furnished or intended to be furnished in violation
of articles eight-a or eight-c of this chapter or section fourteen-b, article three-c of this chapter by any person in exchange for a
visual depiction, all proceeds traceable to the exchange and all
moneys, negotiable instruments and securities used, or which are
intended to be used, to facilitate any violation of article eight-a
or eight-c of this chapter or section fourteen-b, article three-c
of this chapter: Provided, That no property may be forfeited under
this subdivision, to the extent of the interest of an owner, by
reason of any act or omission established by that owner to have
been committed or omitted without his or her knowledge or consent;
and

(5) All conveyances, including aircraft, vehicles or vessels,
which are used, have been used, or are intended for use, to
transport, or in any manner to facilitate the transportation, sale,
receipt, possession or concealment of property described in
subdivision (1), (2) or (3) of this subsection, except that:

(A) A conveyance used by any person as a common carrier in the
transaction of business as a common carrier shall not be forfeited
under this section unless it appears that the person owning the
conveyance is a consenting party or privy to a violation of article
eight-a or eight-c of this chapter or section fourteen-b, article
three-c of this chapter;

(B) A conveyance shall not be forfeited under the provisions
of this article if the person owning the conveyance establishes
that he or she neither knew, nor had reason to know, that the
conveyance was being employed or was likely to be employed in a
violation of article eight-a or eight-c of this chapter or section
fourteen-b, article three-c of this chapter; and

(C) A bona fide security interest or other valid lien in any
conveyance shall not be forfeited under the provisions of this
article, unless the state proves by a preponderance of the evidence
that the holder of the security interest or lien either knew, or
had reason to know, that the conveyance was being used or was
likely to be used in a violation of article eight-a or eight-c of
this chapter or section fourteen-b, article three-c of this
chapter.

(b) Property subject to forfeiture under this article may be
seized by the State Police (hereinafter referred to as the
"appropriate person" in this article).

(c) Visual depictions which are manufactured, possessed,
transferred, sold or offered for sale in violation of this article
are contraband and shall be seized and summarily forfeited to the
state. Visual depictions which are seized or come into the
possession of the state, the owners of which are unknown, are
contraband and shall be summarily forfeited to the state upon the
seizure of the visual depictions.

(d) Notwithstanding any other provisions of this article to
the contrary, any items of tangible personal property sold to a
bona fide purchaser are not subject to forfeiture unless the state
establishes by clear and convincing proof that the bona fide
purchaser knew or should have known that the property had in the
previous three years next preceding the sale been used in violation
of this chapter.

(e) Notwithstanding any other provisions of this code to the
contrary, any person who has an ownership interest in items of
tangible personal property subject to forfeiture by this article
shall be presumed to be an innocent owner. Unless the state
establishes by clear and convincing proof that the innocent owner
knew or should have known that the property subject to forfeiture
had been used in violation of article eight-a or eight-c of this
chapter or section fourteen-b, article three-c of this chapter and,
if applicable, that the innocent owner did not do all that
reasonably could be expected under the circumstances to terminate
the illegal use of the property once he or she had knowledge of it,
the court shall enter an order either: (1) Severing the property
appropriately; (2) transferring the property to the state with a
provision that the state shall compensate the innocent owner to the
extent of his or her ownership interest once a final order of
forfeiture has been entered and the property has been reduced to
liquid assets; or (3) permitting the innocent owner to retain the
property subject to a lien in favor of the state to the extent of
the forfeitable interest in the property. If the state meets the
burden set forth in this section, then the court shall enter an
order declaring the person with an ownership interest is not an
innocent owner and allowing forfeiture proceedings to continue,
pursuant to the requirements set forth in this article.

§61-8C-8. Procedures for seizure of forfeitable property.

(a) Seizure of property made subject to forfeiture by the
provisions of this article may be made upon process issued by any
court of record having jurisdiction over the property.

(b) Notwithstanding the provisions of subsection (a) of this
section, seizure of property subject to forfeiture by the
provisions of this article may be made without process if:

(1) The seizure is incident to a lawful arrest or pursuant to
a search under a search warrant or an inspection warrant;

(2) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
based upon this article;

(3) The appropriate person has probable cause to believe that
the property is directly or indirectly dangerous to health or
safety; or

(4) The appropriate person has probable cause to believe that
the property was used or intended for use in violation of this
chapter.

(c) In the event of seizure pursuant to subsection (b) of this
section, forfeiture proceedings shall be instituted within ninety
days of the seizure thereof.

(d) Property taken or detained under this section shall not be
subject to replevin, but is deemed to be in the custody of the
appropriate person, subject only to the orders and decrees of the
court having jurisdiction over the forfeiture proceedings. When
property is seized under this article, the appropriate person may:

(1) Place the property under seal;

(2) Remove the property to a place designated by him or her;

(3) Require the appropriate law-enforcement agency to take
custody of the property and remove it to an appropriate location
for disposition in accordance with law; or

(4) In the case of seized moneys, securities or other
negotiable instruments, place the assets in any interest-bearing
depository insured by an agency of the federal government.

§61-8C-9. Procedures for forfeiture.

(a)(1) Any proceeding wherein the state seeks forfeiture of
property subject to forfeiture under this article shall be a civil
proceeding. A petition for forfeiture may be filed on behalf of the
state and any law-enforcement agency making a seizure under this
article by the prosecuting attorney of a county, or duly appointed
special prosecutor.

(2) A petition for forfeiture may be filed and proceedings
held thereon in the circuit court of the county wherein the seizure
was made, the real property subject to forfeiture is situate or the
circuit court of the county wherein any owner of the property
subject to forfeiture may reside.

(3) Any civil trial stemming from a petition for forfeiture
brought under this article at the demand of either party shall be
by jury.

(4) A petition for forfeiture of the seized property shall be
filed within ninety days after the seizure of the property in
question. The petition shall be verified by oath or affirmation of
a law-enforcement officer representing the law-enforcement agency
responsible for the seizure or the prosecuting attorney and shall
contain the following:

(A) A description of the property seized;

(B) A statement as to who is responsible for the seizure;

(C) A statement of the time and place of seizure;

(D) The identity of the owner or owners of the property, if
known;

(E) The identity of the person or persons in possession of the
property at the time seized, if known;

(F) A statement of facts upon which probable cause for belief
that the seized property is subject to forfeiture pursuant to the
provisions of this article is based;

(G) The identity of all persons or corporations having a
perfected security interest or lien in the subject property, as
well as the identity of all persons or corporations known to the
affiant who may be holding a possessory or statutory lien against
such property; and

(H) A prayer for an order directing forfeiture of the seized
property to the state, and vesting ownership of such property in
the state.

(b) At the time of filing or as soon as practicable
thereafter, a copy of the petition for forfeiture shall be served
upon the owner or owners of the seized property, as well as all
holders of a perfected security interest or lien or of a possessory
or statutory lien in the same class, if known. Should diligent
efforts fail to disclose the lawful owner or owners of the seized
property, a copy of the petition for forfeiture shall be served
upon any person who was in possession or alleged to be in
possession of the property at the time of seizure, where such
person's identity is known. The above service shall be made
pursuant to the provisions of the West Virginia Rules of Civil
Procedure. Any copy of the petition for forfeiture so served shall
include a notice substantially as follows: "To any claimant to the
within described property: You have the right to file an answer to
this petition setting forth your title in, and right to possession
of, the property within thirty days from the service hereof. If you
fail to file an answer, a final order forfeiting the property to
the state will be entered, and such order is not subject to
appeal."

If no owner or possessors, lien holders or holders of a
security interest be found, then such service may be by Class II
legal publication in accordance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
shall be the county wherein such property was located at the time
of seizure and the county wherein the petition for forfeiture is
filed.

(c) In addition to the requirements of subsection (b) above,
the prosecuting attorney or law-enforcement officer upon whose oath
or affirmation the petition for forfeiture is based, shall be
responsible for the publication of a further notice. Such further
notice that a petition for forfeiture has been filed shall be
published by Class II legal advertisement in accordance with
article three, chapter fifty-nine of this code. The publication
area shall be the county wherein the property was seized and the
county wherein the petition for forfeiture is filed. The notice
shall advise any claimant to the property of their right to file a
claim on or before the date set forth in the notice, which date
shall not be less than thirty days from the date of the first
publication. The notice shall specify that any claim must clearly
state the identity of the claimant and an address where legal
process can be served upon that person. In addition such notice
shall contain the following information:

(1) A description of the property seized;

(2) A statement as to who is responsible for the seizure;

(3) A statement of the time and place of seizure;

(4) The identity of the owner or owners of the property, if
known;

(5) The identity of the person or persons in possession of the
property at the time of seizure, if known; and

(6) A statement that prayer for an order directing forfeiture
of the seized property to the state, and vesting ownership of such
property in the state shall be requested of the court.

(d) If no answer or claim is filed within thirty days of the
date of service of the petition pursuant to subsection (b) of this
section, or within thirty days of the first publication pursuant to
subsection (b) of this section, the court shall enter an order
forfeiting the seized property to the state. If any claim to the
seized property is timely filed, a time and place shall be set for
a hearing upon such claim. The claimant or claimants shall be given
notice of such hearing not less than ten days prior to the date set
for the hearing.

(e) At the hearing upon the claim or claims, the state shall
have the burden of proving by a preponderance of the evidence that
the seized property is subject to forfeiture pursuant to the
provisions of this chapter.

(f) Any order forfeiting property to the state and entered
pursuant to this section perfects the state's right, title and
interest in the forfeited property and relates back to the date of
seizure: Provided, That in any proceeding under this article the
circuit court shall in its final order make specific findings with
respect to whether or not probable cause to seize such property
existed at the time of such seizure.

(g) During the pendency of a forfeiture proceeding, it is
unlawful for any property owner or holder of a bona fide security
interest or other valid lien holder to transfer or attempt to
transfer any ownership interest or security interest in seized
property with the intent to defeat the purpose of this article, and
the court wherein the petition for forfeiture is filed may enjoin
a property owner or holder of a security interest or other lien
holder from making such a transfer should one come to its
attention. Any such transfer which is made in violation of the
provisions of this subsection shall have no effect upon an order of
the court forfeiting seized property to the state if a notice of
lis pendens is filed prior to the recording of the instrument of
transfer.

(h) The court may void any transfer of property made before or
after a forfeiture proceeding has been commenced, which is subject
to forfeiture, if the transfer was not to a bona fide purchaser
without notice for value.

(i) An appeal of a decision of the circuit court concerning a
forfeiture proceeding brought pursuant to this chapter must be
filed within one hundred twenty days of the date of entry of the
final appealable order. The appellant shall be required to give
notice of intent to appeal within thirty days of the entry of such
appealable order.

§61-8C-10. Disposition of forfeited moneys, securities or other
negotiable instruments; distribution of proceeds.

(a) Whenever moneys, securities or other negotiable
instruments are forfeited under the provisions of this article,
such proceeds shall be distributed as follows:

(1) Ten percent of the proceeds shall be tendered to the
office of the prosecuting attorney which initiated the forfeiture
proceeding;

(2) The balance shall be deposited in a special law-enforcement investigation fund. The fund may be placed in any
interest-bearing depository insured by an agency of the federal
government. The fund shall be administered by the Superintendent of
the State Police or his or her designee.

(b) No funds shall be expended from the special law-enforcement investigation fund except as follows:

(1) In the case of funds belonging to the State Police, the
funds shall only be expended at the direction of the Superintendent
of the State Police and in accordance with the provisions of
section fifteen, article two, chapter five-a of this code and the
provisions of subdivision (10), subsection (b), section two,
article two, chapter twelve of this code;

(2) In the case of funds belonging to the office of the
prosecuting attorney of any county in which the special fund has
been created, the funds therein may only be expended in the manner
provided in sections four and five, article five, chapter seven of
this code; and

(3) In the case of funds belonging to the police department of
any municipality in which the special fund has been created, the
funds therein may only be expended in the manner provided in
section twenty-two, article thirteen, chapter eight of this code.

§61-8C-11. Disposition of other forfeited property; distribution
of proceeds.

(a) When property other than that referred to in section ten
of this article is forfeited under this article, the circuit court
ordering the forfeiture, upon application by the prosecuting
attorney or the Superintendent of the State Police or his or her
designee, may direct that:

(1) Title to the forfeited property be vested in the law-enforcement agency so petitioning;

(2) The law-enforcement agency responsible for the seizure
retain the property for official use; or

(3) The forfeited property shall be offered at public auction
to the highest bidder for cash. Notice of such public auction shall
be published as a Class III legal advertisement in accordance with
article three, chapter fifty-nine of this code. The publication
area shall be the county where the public auction will be held.

(b) When a law-enforcement agency receives property pursuant
to this section, the court may, upon request of the prosecuting
attorney initiating the forfeiture proceeding, require the law-enforcement agency to pay unto the office of said prosecuting
attorney a sum not to exceed ten percent of the value of the
property received to compensate said office for actual costs and
expenses incurred.

(c) The proceeds of every public sale conducted pursuant to
this section shall be paid and applied as follows: First, to the
balance due on any security interest preserved by the court;
second, to the costs incurred in the storage, maintenance and
security of the property; and third, to the costs incurred in
selling the property.

(d) Any proceeds of a public sale remaining after distribution
pursuant to subsection (c) of this section shall be distributed as
follows:

(1) Ten percent of such proceeds shall be tendered to the
office of the prosecuting attorney who initiated the forfeiture
proceeding.

(2) The balance shall be deposited in a special law-enforcement investigation fund. Such fund shall be administered by
the Superintendent of the State Police or his or her designee and
shall take the form of an interest-bearing account with any
interest earned to be compounded to the fund. Any funds deposited
in the special law-enforcement investigative fund pursuant to this
article shall be expended only to defray the costs of protracted or
complex investigations, to provide additional technical equipment
or expertise, to provide matching funds to obtain federal grants or
for such other law-enforcement purposes as the Superintendent of
the State Police or his or her designee may deem appropriate;
however, these funds may not be utilized for regular operating
needs.

(e) If more than one law-enforcement agency was substantially
involved in effecting the seizure and forfeiture of property, the
court wherein the petition for forfeiture was filed shall equitably
distribute the forfeited property among the law-enforcement
agencies. In the event of a public sale of such property pursuant
to subsection (a) of this section, the court shall equitably
distribute any proceeds remaining after distribution pursuant to
subsection (c) and subdivision (1), subsection (d) of this section
among such law-enforcement agencies for deposit into their
individual special law-enforcement investigative fund. Equitable
distribution shall be based upon the overall contribution of the
individual law-enforcement agency to the investigation which led to
the seizure.

(f) Upon the sale of any forfeited property for which title or
registration is required by law, the state shall issue a title or
registration certificate to any bona fide purchaser at a public
sale of the property conducted pursuant to subsection (a) of this
section. Upon the request of the law-enforcement agency receiving,
pursuant to the order of the court, or electing to retain, pursuant
to subsection (a) of this section, any forfeited property for which
title or registration is required by law, the state shall issue a
title or registration certificate to the appropriate governmental
body.

(g) Any funds expended pursuant to the provisions of this
section, shall only be expended in the manner provided in
subsection (b), section nine of this article.

(h) Every prosecuting attorney or law-enforcement agency
receiving forfeited property or proceeds from the sale of forfeited
property pursuant to this article shall submit an annual report to
the body which has budgetary authority over such agency. Such
report shall specify the type and approximate value of all
forfeited property and the amount of proceeds from the sale of
forfeited property received in the preceding year. No county or
municipality may use anticipated receipts of forfeited property in
their budgetary process.

(i) In lieu of the sale of any forfeited property subject to
a bona fide security interest preserved by an order of the court,
the law-enforcement agency receiving the forfeited property may pay
the balance due on any security interest preserved by the court
from funds budgeted to the office or department or from the special
fund and retain possession of the forfeited property for official
use pursuant to subsection (a) of this section.

(j) In every case where property is forfeited, disposition of
the forfeited property, in accordance with this article, shall be
made within six months of the date upon which the court of
jurisdiction orders forfeiture. Should the office or agency
receiving the property fail either to place the property in
official use or dispose of the property in accordance with law, the
court of jurisdiction shall cause disposition of the property to be
made with any proceeds therefrom to be awarded to the state.

(k) No disposition shall occur until all applicable periods
for filing a notice of intent to appeal has expired and no party in
interest shall have filed such notice. The filing of the notice of
intent to appeal shall stay any such disposition until the appeal
has been finally adjudicated or until the appeal period of one
hundred eighty days has expired without an appeal having actually
been taken or filed, unless a valid extension of the appeal has
been granted by the circuit court under the provisions of section
seven, article four, chapter fifty-eight of this code.

(l) The special law-enforcement investigative funds of each
law-enforcement agency may be placed in an interest-bearing
depository insured by the federal government.